HOUSE JUDICIARY STANDING COMMITTEE
January 29, 1996
1:05 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative David Finkelstein
MEMBERS ABSENT
Representative Al Vezey
Representative Cynthia Toohey
Representative Bettye Davis
COMMITTEE CALENDAR
HOUSE BILL NO. 341
"An Act establishing a tax court to consider and determine certain
taxes and penalties due and collateral matters, and amending
provisions relating to taxpayer challenges to the assessment, levy,
and collection of taxes by the state; and providing for an
effective date."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
HOUSE BILL NO. 392
"An Act relating to the affirmative vote necessary to amend the
articles of incorporation of Native village corporations to
authorize the classification of directors."
- PASSED OUT OF COMMITTEE
HOUSE BILL NO. 437
"An Act establishing the Judicial Officers Compensation Commission;
relating to the compensation of supreme court justices, judges of
the court of appeals, judges of the superior court, and district
court judges; and providing for an effective date."
- PASSED OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 341
SHORT TITLE: ALASKA TAX COURT
SPONSOR(S): REPRESENTATIVE(S) GREEN
JRN-DATE JRN-DATE ACTION
05/09/95 2042 (H) READ THE FIRST TIME - REFERRAL(S)
05/09/95 2042 (H) RES, JUD, FINANCE
10/24/95 (H) RES AT 09:00 AM ANCHORAGE LIO
10/24/95 (H) MINUTE(RES)
01/19/96 (H) RES AT 09:00 AM CAPITOL 124
01/19/96 (H) MINUTE(RES)
01/24/96 (H) RES AT 08:00 AM CAPITOL 124
01/26/96 2536 (H) RES RPT CS(RES) NT 1DP 4NR 3AM
01/26/96 2537 (H) DP: GREEN
01/26/96 2537 (H) NR: OGAN, AUSTERMAN, KOTT, WILLIAMS
01/26/96 2537 (H) AM: NICHOLIA, DAVIES, LONG
01/26/96 2537 (H) FISCAL NOTE (COURT)
01/26/96 2537 (H) ZERO FISCAL NOTE (REV)
01/26/96 2537 (H) REFERRED TO JUDICIARY
01/26/96 (H) RES AT 08:00 AM CAPITOL 124
01/26/96 (H) JUD AT 01:00 PM CAPITOL 120
01/26/96 (H) MINUTE(JUD)
01/29/96 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 392
SHORT TITLE: NATIVE CORP DIRECTOR CLASSIFICATION
SPONSOR(S): REPRESENTATIVE(S) IVAN
JRN-DATE JRN-DATE ACTION
01/05/96 2369 (H) PREFILE RELEASED
01/08/96 2369 (H) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2369 (H) CRA, JUDICIARY, FINANCE
01/16/96 (H) CRA AT 01:00 PM CAPITOL 124
01/16/96 (H) MINUTE(CRA)
01/17/96 2462 (H) CRA RPT 2DP 2NR
01/17/96 2462 (H) DP: AUSTERMAN, IVAN
01/17/96 2462 (H) NR: ELTON, KOTT
01/17/96 2462 (H) 2 ZERO FNS (DHSS, DCRA)
01/26/96 (H) JUD AT 01:00 PM CAPITOL 120
01/26/96 (H) MINUTE(JUD)
01/29/96 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 437
SHORT TITLE: JUDICIAL OFFICERS COMPENSATION COMMISSION
SPONSOR(S): JUDICIARY BY REQUEST
JRN-DATE JRN-DATE ACTION
01/19/96 2489 (H) READ THE FIRST TIME - REFERRAL(S)
01/19/96 2490 (H) JUDICIARY, FINANCE
01/29/96 (H) JUD AT 01:00 PM CAPITOL 120
WITNESS REGISTER
IVAN M. IVAN, Representative
Alaska State Legislature
State Capitol Building, Room 503
Juneau, Alaska 99801
Telephone: (907) 465-4942
POSITION STATEMENT: Presented sponsor statement for HB 392.
CHARLES S. "Chris" CHRISTENSEN III, Staff Counsel
Office of Administrative Director
Alaska Court System
303 K Street
Anchorage, Alaska 99501
Telephone: (907) 264-8228
POSITION STATEMENT: Presented sponsor statement for HB 437
ACTION NARRATIVE
TAPE 96-9, SIDE A
Number 0001
CHAIRMAN BRIAN PORTER called the House Judiciary Committee meeting
to order at 1:05 p.m. Members present at the call to order were
Representatives Porter, Bunde, Green and Finkelstein. Members
absent were Representatives Vezey, Toohey and B. Davis.
HB 341 - ALASKA TAX COURT
CHAIRMAN PORTER assigned HB 341 to a subcommittee composed of
Representatives Green, Porter and Davis. He asked Representative
Green to chair the subcommittee, to which Representative Green
agreed.
REPRESENTATIVE FINKELSTEIN expressed interest in HB 341 and
volunteered to serve on the subcommittee in the event
Representative Davis did not wish to do so.
HB 392 - NATIVE CORP DIRECTOR CLASSIFICATION
Number 0165
REPRESENTATIVE IVAN IVAN, sponsor of HB 392, presented the bill.
He prefaced his remarks by saying he represented District 39,
Southwestern Alaska. He explained that HB 392 amended the Alaska
Corporations Code to allow Alaska Native Claims Settlement Act
(ANCSA) village corporations to amend their articles and bylaws to
authorize a classified or staggered term board of directors by a
majority vote of the shares represented at a meeting of
shareholders. Under current law, for those villages which did not
have classified boards in place by July 1, 1989, such an amendment
required a vote of two-thirds of all outstanding shares entitled to
vote. This was often difficult for village corporations to
achieve. House Bill 392 rectified that situation.
REPRESENTATIVE IVAN added that HB 392 was introduced at the request
of a village corporation based out of Napaskiak, located several
miles downriver from Bethel, as well as a village corporation north
of the Yukon River. For years, these corporations had attempted to
classify their boards of directors. However, the requirement for
a vote of two-thirds of all shares prevented the corporations from
achieving that goal.
REPRESENTATIVE IVAN explained that most of these small communities
had five directors in place. With five directors, current law
required each one to be up for reelection each year. The villages
were seeking continuity in their boards of directors. With more
than five directors, they could institute staggered terms. The
purpose of HB 392 was to implement these changes.
Number 0401
REPRESENTATIVE IVAN commented that Glen Price, attorney for the two
village corporations, was available to answer questions.
Representative Ivan added that when the HB 392 had been introduced
in the House Community and Regional Affairs Committee, he had not
heard any opposition to the bill. It was simple and straight-
forward, he said.
Number 0463
REPRESENTATIVE JOE GREEN asked whether Representative Ivan knew
what the attitudes of the other villages were towards HB 392.
REPRESENTATIVE IVAN replied that with more than 200 village
corporations in Alaska, he could not respond to that. However, he
felt certain that many small villages fell into this category.
Bigger communities such as Bethel, he added, had up to nine
directors; the regional corporations had nine or more. But as for
the smaller villages, he knew of nobody who had come forward
opposing this concept or having concerns over it.
Number 0527
REPRESENTATIVE CON BUNDE asked how many village corporations
Representative Ivan had communicated with about the issue.
REPRESENTATIVE IVAN reiterated that they had not received
opposition to HB 392.
Number 0570
CHAIRMAN PORTER declared that in reviewing the bill, he and Tom
Meyer, committee aide for the House Judiciary Committee, had
noticed that while HB 392 appeared straight-forward, clear and easy
to understand, it was involved in a body of law that was anything
but clear and concise.
CHAIRMAN PORTER observed that no one else was present to testify;
however, before taking action on the bill, he wanted to mention
that Mr. Meyer had discovered the law being amended by HB 392 was
not a codified law. It was a session law grandfathering every
corporation that had been incorporated prior to 1989 into the laws
now being amended. For some reason, he said, these laws had never
been codified. The new, revised law affecting corporations
incorporated on or after July 1, 1989, was the one on the books.
To anyone except a corporation lawyer, he said, that could be
extremely confusing for someone reviewing the law books to
determine which law affected which corporation, especially if it
were a corporation begun prior to 1989. The question had just come
up, he said, and nobody had been able to give them an answer yet.
He stated his belief that the body of law in question needed to be
codified in order to minimize confusion. He added that
Representative Ivan's office was going to investigate the matter
before HB 392 went to the House Finance Committee. Chairman Porter
asserted that matter would probably not be affected by HB 392 one
way or the other; it was a side issue, however, that needed
addressing.
Number 0733
REPRESENTATIVE GREEN moved that HB 392, version C, move from the
House Judiciary Committee with individual recommendations and zero
fiscal notes. There being no objection, it was so ordered.
HB 437 - JUDICIAL OFFICERS COMPENSATION COMMISSION
Number 0770
CHAIRMAN PORTER brought HB 437 before the committee and welcomed
Chris Christensen to introduce the bill.
CHARLES S. ("Chris") CHRISTENSEN III, Staff Counsel, Office of
Administrative Director, Alaska Court System, presented the sponsor
statement for HB 437. He said the bill, introduced at the request
of the Alaska Supreme Court, was that court's highest priority for
1996.
MR. CHRISTENSEN explained that HB 437 created a new Judicial
Officers Compensation Commission to replace the State Officers
Compensation Commission for purposes of determining the salaries of
justices and judges. The existing commission recommended
compensation levels for certain state officers, including judges,
to the legislature. Its recommendations had not generally been
implemented by the legislature, he said, for reasons unrelated to
their merits. In contrast, he said, the commission created by HB
437 would have the authority to actually set judicial salaries,
subject to both legislative appropriation and possible rejection by
the legislature.
MR. CHRISTENSEN said currently there were nine jurisdictions,
including the federal government, operating some form of
compensation commission with the authority to actually set salaries
for public officers including judges. The commissions existed to
see that fair decisions were made regarding compensation of certain
government officials and to reduce political battles revolving
around such salary decisions.
MR. CHRISTENSEN explained that the current system in Alaska had
historically resulted in salary adjustments for judges being lumped
together with adjustments for legislators, the governor and his
commissioners. This resulted in decisions about judicial salaries
being subject to political decisions that were irrelevant. An
essential goal of the court system, as well as government, he said,
was to attract or retain highly qualified attorneys. Achieving
that goal required salaries commensurate with the qualifications
and responsibilities of the office of justice or judge. The
judiciary, he added, had not received a cost-of-living adjustment
since 1991; in the same time period, every other state has granted
at least one salary increase to its judges. He said Alaska was now
in the bottom one-third of the states in terms of judicial
salaries. Furthermore, Alaska Superior Court judges had a far
greater workload than federal judges.
MR. CHRISTENSEN pointed out that one impact of eroding judicial
salaries was already being seen, with several judgeships coming
vacant in the past year. The percentage of private attorneys
versus public attorneys applying for those positions was declining,
he said. He preferred to see a balance.
MR. CHRISTENSEN explained that the commission would have five
members appointed by the governor, including a business executive;
a person with personnel management experience; a representative of
a nonpartisan voters' organization; an economist; and an attorney.
Every other year, the commission would review the compensation of
justices and judges. After holding required public hearings to
discuss its findings, it would submit a report to the legislature.
If the commission recommended a change of compensation, it would
submit an order with the report. An order changing the
compensation would take effect unless a bill disapproving the order
in its entirety was enacted into law within 60 days after the order
was submitted to the legislature. Unless disapproved, an order
increasing compensation would be subject to funding through
legislative appropriation and would not take effect until that
appropriation was made. Unless disapproved, an order decreasing
compensation would take effect on the day the legislature passed a
general law, applying to all salaried officers of the state,
decreasing compensation. That, he said, was the constitutional
requirement for reducing a judge's salary.
MR. CHRISTENSEN concluded by referring to page 4, line 14; he said
an equivalent list of standards for determining a fair salary did
not exist in the statute regulating the current commission.
Number 1113
REPRESENTATIVE GREEN mentioned the significantly higher workload of
Alaska Superior Court judges, compared to that of federal judges.
He asked how the Alaska Supreme Court workload would compare.
MR. CHRISTENSEN replied that it varied from court to court. In
Anchorage, where most of the superior court judges were, the
average caseload was 800 cases per judge.
REPRESENTATIVE GREEN clarified that he was asking about the supreme
court.
Number 1186
MR. CHRISTENSEN responded that he did not have the statistics with
him. He said they were very busy. He added that the court of
appeals had been created some years before because the supreme
court was considered overworked at the time. He added that
justices and judges in the supreme court, court of appeals and
superior court had similar salaries in Alaska, within 5 percent of
each other. He believed there was more variation among federal
judges.
Number 1205
REPRESENTATIVE GREEN referred to the zero fiscal note in the packet
and said he presumed that if the commission were established, the
salaries would increase. He asked for an explanation.
MR. CHRISTENSEN said the cost of the bill was the cost to run the
commission. There was no cost to the court system for that, he
said. The Department of Administration would be paying per diem to
the five members of the commission for the period of time when they
were meeting. He said there needed to be a fiscal note attached in
the House Finance Committee. He added that there was no certainty
that the commission would increase salaries. However, if the
commission increased salaries and those increases came before the
legislature, the legislature still had to appropriate the money.
The legislature did retain final control.
Number 1250
REPRESENTATIVE BUNDE commented that he had noticed that the zero
fiscal note seemed inappropriate. A commission would certainly
have a cost. He added that he was not disagreeing with the goal of
having judges with real life experience; he thought Alaska could
use more of those. He noted that there had been recommendations
for increased salaries that the legislature had not funded. He
asked how creating the new commission would impact that, because it
would still need to be funded.
Number 1293
MR. CHRISTENSEN replied that the current commission sent a
recommendation to the legislature, which then had to act in an
affirmative way in terms of introducing a bill and changing a
statute. With the new system, the commission would send an order
to the legislature that would have to be rejected within a
specified period of time if they wanted to negate it. To affirm
it, only an appropriation would be required.
MR. CHRISTENSEN explained that when the current commission sent in
its orders, those related to legislators and the governor as well,
creating political issues. With the new commission, however, the
issues revolving around legislators, the governor and his
commissioners would be separated from salary considerations for
judges and justices.
Number 1350
REPRESENTATIVE BUNDE commented that he saw two issues: 1)
establishing a commission; and 2) the mechanism for approval by the
legislature. He said he was uncomfortable with the idea of getting
a raise if there were no vote against it. He asked how this
related to HB 236, which was an attempt to limit salaries.
Specifically, he wanted to know if judges were being exempted from
HB 236.
Number 1300
MR. CHRISTENSEN replied no. He said the United States Supreme
Court had considered the issues raised by this legislation in the
federal context; they had ruled that the only way a legislature
could delegate authority to determine the salaries of public
officers was if they retained ultimate control, for example, in the
form of the power of appropriation or the power of passing
overriding legislation at a future date. This bill, he said, gave
the legislature the power of that appropriation; furthermore,
Alaska's constitution provided the Alaska State Legislature the
power of overriding legislation. By law, one legislature could not
bind a future legislature.
MR. CHRISTENSEN commented that if HB 236 or something similar
became law, the legislature would still retain the ability to
reduce judges' salaries at a future time. However, the
constitution said that in order to reduce a judge's salary, it had
to be reduced by the same percentage as the salaries of all other
officers of the state were being reduced. Judges could not be
singled out. He noted that this provision existed in almost every
state constitution, as well as the federal constitution.
Number 1463
REPRESENTATIVE GREEN referred to Mr. Christensen's comments about
discrepancies in salaries. He noted that the Alaska State
Legislature had, some years prior, tried to increase its salaries
by about 40 percent; there had been a hue and cry about that.
Representative Green asked whether Mr. Christensen anticipated that
if the commission were established, they would try to make parity
with salaries elsewhere quickly. He wondered whether the states
with similar mechanisms had seen a big advantage in salaries.
Number 1508
MR. CHRISTENSEN responded that he would not expect the commission
to recommend parity with federal judges. One factor the commission
was required to consider, he said, was the cost to the state and
whether or not the state could afford it. The legislature, he
added, would do that same second-guessing. Most states did not pay
their equivalent judges at the same rate as for federal judges, he
clarified. They paid higher than Alaska but lower than that. Mr.
Christensen added that he would expect politics to be involved in
a large raise; that was the reason for the requirement of public
hearings. With regard to other states, his own research indicated
that most other states with this process used it not only for
judges but for their legislatures as well, in hopes of reducing
political battles over salaries. He understood that it had been
relatively successful, at least at the state level, in reducing
those battles.
Number 1593
REPRESENTATIVE GREEN asked if Mr. Christensen could estimate the
workload of the Alaska Supreme Court, compared to that of similar
courts in other states.
Number 1610
MR. CHRISTENSEN replied that was difficult to answer. Different
states had their court systems set up differently. They had
varying jurisdictions, numbers of cases and kinds of cases.
Furthermore, other supreme courts had different numbers of members.
He said he believed Alaska's was the smallest. He asserted this
meant its individual members worked more than members of larger
courts, as each member would write a certain number of cases. Mr.
Christensen offered to gather some statistics.
REPRESENTATIVE GREEN said Mr. Christensen had made a good point.
Number 1647
CHAIRMAN PORTER noted that magistrates seemed to be excluded from
consideration by the commission. He asked what the thinking was
behind that.
Number 1658
MR. CHRISTENSEN explained that magistrates were not constitutional
officers appointed by the governor. They were employees hired by
the court system. A third of them were not even attorneys.
Magistrates received substantially lower salaries than judges,
being Range 21 or less on the state pay scale. Many worked half-
time. Mr. Christensen added there was no problem getting highly
qualified applicants for magistrate positions with the amounts the
legislature had funded the courts to pay them.
Number 1695
CHAIRMAN PORTER commented that in the establishment of a
commission, in most cases there was a gubernatorial appointment and
a confirmation by the legislature. He noted that second step had
been omitted and asked for the thinking on that.
Number 1705
MR. CHRISTENSEN replied that he thought the legislation copied how
the current commission operated. The Alaska Supreme Court
certainly did not care how the commission was set up, he said. Mr.
Christensen recounted an argument years before between the attorney
general and a legislative committee over whether or not, with this
type of commission, the legislature could be required to vote on
the membership. He said he did not have the answer; however, the
supreme court did not object to it if the legislature wanted to
appoint the membership in a different manner or have them
confirmed.
Number 1734
CHAIRMAN PORTER asked about the commission member who would belong
to a nonpartisan voters' organization. He said he knew of only one
such organization and asked if Mr. Christensen knew of more.
MR. CHRISTENSEN responded that the list was certainly subject to
change. He said the current commission required that particular
member. Although it might make sense when considering the
legislature or other elected officers, he was not sure it made
sense for judges. Mr. Christensen expressed that it was important,
however, for one of the five members to be an attorney.
Number 1784
CHAIRMAN PORTER referred to the provision for public hearings. He
said he saw no mention under AS 39.23.560 of consideration of the
public input, nor of the state's ability to pay the salaries.
MR. CHRISTENSEN confirmed that with respect to considering the
public input, that was not in the list.
CHAIRMAN PORTER suggested it was perhaps included under item (12)
on page 5, line 8.
MR. CHRISTENSEN referred to page 5, line 2, and pointed out that
the second half of item (9) related to the financial ability of the
state to meet the costs. However, he said, Chairman Porter had
made a good point about putting the requirement for considering
public comment on that list. The public comment, he thought, was
going to be highly relevant because these were public officers.
Number 1848
REPRESENTATIVE BUNDE asked whether Mr. Christensen was conveying
that the Alaska Supreme Court had either expressed concern about or
was unable to attract quality applicants.
MR. CHRISTENSEN responded that Alaska had a good judiciary; he
thought in terms of qualifications, it was the best Alaska had ever
had. However, he said, there would eventually be a turnaround.
They were already seeing more public applicants as opposed to
private applicants, the reason being, he said, that for most public
attorneys, this was either a pay raise or the same salary. For
qualified private applicants, he said, it was usually a big pay
cut. He said that when the court had received a pay raise in 1990,
that was their first raise in five years. During the two years
before 1990, he said, the court had lost 20 percent of its members.
Many of those who left had commented that they needed to get back
into private practice to earn more money.
Number 1914
REPRESENTATIVE GREEN noted that the legislation applied to a
commission to recommend judges' salaries. He asked if that
included just the judge or whether it filtered down through legal
advisors, clerks and so forth.
MR. CHRISTENSEN said absolutely not. That would continue to be
done in the current method. This legislation was just for supreme
court justices, judges of the court of appeals and judges of the
superior and district courts. Approximately 55 men and women would
be affected.
Number 1960
CHAIRMAN PORTER suggested placing the word "comments" after
"interests" in item (9), page 5, line 2. It would then read,
"interests [comma], comments and welfare of the public and the
financial ability of the state to meet the costs".
MR. CHRISTENSEN agreed that would probably work well.
Number 1988
REPRESENTATIVE GREEN offered an amendment to HB 437, inserting the
word "comments", with commas before and after, between the words
"interests" and the word "and" on line 2 of page 5.
REPRESENTATIVE FINKELSTEIN noted that on page 3, line 28, it
already said that the "commission shall give due regard to public
comments". Although he saw no harm in it, he did not think the
amendment was necessary.
Number 2035
CHAIRMAN PORTER advised that there had been a motion, which they
would call "Amendment Number 1, to add to page 5, line 2, the
addition of `, comments' between the words `interests' and the word
`and' on that line." He asked if there was an objection. There
being no objection, Amendment Number 1 was passed.
Number 2049
REPRESENTATIVE FINKELSTEIN said he had an amendment which he wanted
to offer; however, he was going to hold off on it. He was
interested in the issue of legislative compensation; he felt that
all the reasons HB 437 was good for judges applied to HB 437 being
good for legislators as well. He said legislators, more than
anyone, suffered from having to be involved in deciding their own
salaries. He said he would work on the amendment.
Number 2084
REPRESENTATIVE BUNDE commented that he certainly wanted the state
to have the best qualified judges possible, with real life
experiences. However, he expressed concern that pay raises would
become effective if the legislature failed to act. He would prefer
action to be in the affirmative. Further, he would like to see
legislative confirmation of commission members included in the bill
as well. He felt HB 437 needed to be amended to include these.
REPRESENTATIVE BUNDE moved that HB 437 be moved from the House
Judiciary Committee, with the attached fiscal note and with a
notation that it needed an additional fiscal note, with individual
recommendations.
Number 2137
CHAIRMAN PORTER recognized the motion to move the bill as described
and asked if there was an objection. There being no objection, HB
437 moved from the House Judicial Committee.
ADJOURNMENT
There being no further business to conduct, CHAIRMAN PORTER
adjourned the House Judicial Committee meeting at 2:45 p.m.